director of public prosecutions vs anjelina ojare 1998 tzca 20 1 july 1998

IN THb COURT OF ,prz:.,L o f T DAP. FS SAL>-Ai'l (CORAtt: KI3.UGA, J . LbSUVA, And Sa>WTTA, J.A.) CPIMIPAL APPEAL KG~ 21 OF 1997 BCT&3SK THE DIRECTOR OF PLHLIC PROSECUTIONS...... AFF EJ..L/.NT AND nNJSLINA OJ/.RE.. ..........<....... . „ PESP*NOE^T * (Ap»-:al from the judg^m^nt of th» High Court of Tanzania at ’-rusha) (Nchalla? J.) dated the 24th day of March, If97 in. f * Criminal A o y a l No. 31 of 1*••••■•-’ JUDGE 1AEKT OF TH5 COURT K I S AT>j G C-., J . j\. t & « This appeal arises from thejud§m=r t of the Higfr Court (Kchalla, J.) which upheld and affirmed the ruling of the resident magistrate's court <;rarting hail to the respondent. The background to the case may »' set out briefly as follows: The respondent applied to the Resident Magistrate's Court for ba.il un^?r sectioji 14? (1)' of the Criminal Procedure Act. The application was made at 'a tine when proceedings #f * a preliminary inquiry into a char«e of murder against the respondent were »«ndin* in that court. The application was resisted by the prosecution on the «t-yun<’ Hiot under section * . . f 148 (5) (a) of tlv i-'rimir ?.l Procedure Act the offence of murder is not bailaMe, ^nd that in any case the Resident Magistrate's Court has no jurisdiction to tyrant bail in respect of murder whiclf was not t/iaiie '«y that Court. The magistrate overruled the ok;action a*d granted bail. The oir^-ctor of Public Prosecutions- appealed unsuccessfully to the High Court wfcich, .../2 2 a.:; ■‘Iready stated > affirmed the decision of the resident M ■ tt'igistrate's court, hence the present appeal to this Court. B&forfe us the appellant Director of Public Prosecutions was represented toy Mr. K.K. Mussa, learned Principal State Attorney, whil* tne rp-sp^ndent was advocated for by Mr. A. Marwai, learned advocate. Counsel pointed out that.a nolle prosequi in respect of Vhe charge had already p ^ n entered or behalf of the £d rector o f Public ProsecMtions, and that this appeal was now intentf^ only to set the record right. ^he ikemorarsfcuri ot epical c<“»tfthiaed the following ground si­ lt ffcafe th^ lA.irMy Jud«A I p encwming jurisdiction a matter •falling within. provision^ tef articles 12 to 29 of the constitution withdtit P^ttlying with rhe provisions of the feasic Rights Duties Enforeew6nt Ait. 2. Thc?t t h " Loa.ervS'J 9 r * M in Is? in g r a n t i n g b a i l c o n t r a r y t£> s e c t i o n 148 (5) (a) the Criminal Proc^urc Act. 3. th<e tfu^ae in holding that section 145 (5) (a) of the Criminal •lHfccidiir* Act violates article^ 13 (6) (b) a*W 15,(2) (r.) a f the*- Constitution and that the ssb® cannot be applied and »*fo£c»<i by khe courts; ft 4 . IN THE ALTERNATIVE to wrovm<3 2 hereinqbovo the learned Judge non—directed himself on •khe- position of the lav as it existed before the enactment o. section 14S (5) (a) -fceftor* upholding and affirming ^he decision of the subordinate court. .•« / 3 ' - 3 - On ’ -ie first ground the thrust of Mr- Mussa* s submission is that the ir n<?d ju^ge wrongly considered and decided on a matter f > 'ling wi-chin Articles 12 to 25 of the Constitution which ip. ..fcter came to the High Court by way of appeal from the district court. According to the learned counsel the matter coulH have considered and decided upon by the High Court only if it was broucrht to that court pursuant to the procedure provided for A un^pr the Basic eights Duties Erforcerfie^t Art No. 33 of 199-.. In response to that, Nr. Mtfwai m&irttiined that tha learned judge w«s justified to hear and decide the rratter on ap4e?,i from the district court. "A fiance through the recoj*r| IhAws thdt the issue of the constitutionality of scction 148 (5) (a) of the Criminal Procedure Act was raised in the district court. Submissions on behalf of the parties in that court were centered on whether or not that provision violated the fundamental right of personal freedom of the individual, and the right of *n accused person to be presumed innorent until proved cruilty as guaranteed under Articles 13 (6) d*).fard 15 (15 of the Constitution »f the Uritod Republic, liereinsfter to be referred to simply as’the Constitution. That was clearly a mattor falling within Artirles 12 to 2 ’.' of the C Constitution, and the pertinent question that follows is: What was tke jpro«edur<=> to be adopted in handling that question. That question was raised sguarely in the High Court during the first npweal. There it w«s submitted that the trial magistrate had no competence to consider the issue of the «w<stitutionr.lity of section 148 (5) (a) of the Criminal Procedure Act, and that once that issue was raised before him me wa? obliged to refer it to the Hi«h Court for determination in terms of section 9 (l) of the Basic V Rights and Duties Enforcement Act, That provision says that:- * ws/4 4 "9 - (l) '/'her:5 in any ©rockedin«s in a subordinate court any question arises as to the contravention of any of tht- previsions of section 12 to 2^ of the Constitution, th.-- presiding magistrate shall, unless the parties to th<=> ftroceediros ?.arfi? to the contrary or the Magistrate is of the opinion that th-? raising of the question is merely frivolous or vexatious, refer the question to the Hicrh Court for decision; save that if the question arises before a Primary Court the magistrate shall refer th& question to the court of a resident magistrate which shall determine whether or not there exists a matter for reference to th<» High Court." The learned judge, however, rejected the submission, ©t'oceeded to consider the constitutionality of section 148 (5) ■(;5) and eventually uwheld the decision of the trial magistrate which had •ranted bail holding, ii» the process, section 140 (5) ,a : to be irconsistent with t.h^ Constitution. In re jsc tine th^ submission the learned judae ref-:'rred to sections i, 5 and V of thrt Basic 3inhts and Duties Enforcement Act. Section 4 provides-- "4. If any person alleges that any of the provisions of sections 12 to 29- of the Constitution has been, is beinq or is likely to b'> contravened in relation to him, hp mayt without prejudice to any other action with sweet to the same matter that is lawfully available, RDiply to the Hiarh Court for redress. ’’ ,/5 Section 5 provides in effect that ->n aggrieved person who g o e s to the Hiqh Court for rP^r-ss pursuant to section 4, shall <$o s o -by filing ? petition to that court. Th^n section 10 (l) provides that:- "1C (l) For the purposes of hearing an d • ^Pt-Tnirirj apv • tition made under this Act including r'fpr-rc^s to it under section 9 f the Hi«h Court shall be composed of three Judges of th- High Court save that the determination whether an application is frivolous, vexatious or othorwis" fit for h* arirg ra^y be made bv a single Judge of the Kiqh Court." The learned judwe, theref or-'- took th ■■ viow that although tha matter before him was not an application by way of a petition under section 5, he was nevartheless, -ntitlad to deal with it pursuant to the option under section 4 whereby th«a aggrieved party could take any ether action, like the appeal in the instant case. And since he was dealing with the matter as an appeal, he was again entitled t<*> sit as a sirgle Judsre, and so th-'1 r''*uirctne nt of throe iudges under section 10 (1) did not 1. arise. With due resoect we cannot •'•re:: with the construction .i*ut l*ythe judge on section 4 of th*- ,,ct. We do not think that theexpression ".... any oth-'r a c t i o n ... *’ in that provision includes an apseal lying to the Hi ah Court. In the instant case, for example, the aggrieved person was Mrs. Glare on whose behalf it w, z alleged that section 148' (5) (a) of the Criminal Procedure Act was violativ^ of her basic right as guaranteed ^y Articles 13 /3) (is) and 1% (1) of the Constitution. . . .,/G 6 I':, ter us of section 4, th-'-r-'-for®, it was Mrs. Ojare who bad the option whether to go to the High Court or to te.Jcp ar.y other action lawfully available to her for redress. Wh?n tfcp matter went to the High Court, however, this was not at the instance of Mrs. ©jare. 11 wcs .it the instance of the Director of Public Prosecutions who was 'ill' *inq, not that section 14A (5) (a) was violative of hr s. O j a r C s basic right but, that the district court had no comDi. tence to corsi ’^r and decide on the constitutio­ nality of that section. In other word’s the allegation or complaint ay Mrs. 0 j are and that by the nirector of Public Prosecutions differed completely from *>ach oth.-'r. In the circumstances, therefore, it is plain that f'rs. ojare has neither applied to thf High Court i or redress ar.der scction 4 of the Basic nights ard Duties Enforcement Act, which would irvolve filing a petition to that court under section 5 of the sane Act, nor has she exercised any other option which was lawfully avai 1 .’hie to her. In other words the appeal to the High Court cannot, be regarded as any other action which was lawfully avail; ole to Mrs. ojare as the learned judge thought, o s r s e _th-:• appeal was rot- at the instance of hr s. © j are and it was not alleeire any infringement of her basic rif.ot. "ve» assurT'ir* that hr s. Ojare had lost in th^ district court and th-’n appealed to the Kiqh Court, this could not have amounted to her ex~rcisire another action or option lawrulxy av.ailaole to her in terms of section 4. Because at that stncre Mrs. O jare, hav in«r thus lost the action in the district court, would have only one option lav.'fully o^en b*1 her, anyway, and that is to appeal to the Hiqh Court. No other option would ©e nawiTull'/ r>;_>or; to her rind thsr^fore the provision wou 14 *' meaninqless. .. ./ 7 think that the expression "any oth*r action .... lawfully available ...." as used in section 4 applies to situations where an alleged wrong, though capable of hein<; redressed as a violation of a It.asic right und<=r the Constitution, the- victim of it, nevertheless, opts to se^k r^dr'ss under the ordinary law. Take, for instance, the wrore ofunlawful confinement. A person who complains of it may, in terms of section 4 anrly to the I-ii<fh Court for redress or institute crimiral or civil proceedings un^er the ordinary law. Thus we are satisfied, that there was non-compliance with the provisions of section 4 of the Basic Rights and Duties Enforcement Act. The complainant on whose behalf it was alleged that section 148 (5) (a) of the Crimiral Procedure Act was violative? of her basic right as guaranteed under Articles 13 (6) 0») and 15 (l) of the Constitution neither applied to the High Court, nor exercised any other option which was lawfully available to h<=r for redress. The learned judge therefore erred in failing t :> hold that there was such non-compliance. THe view we take of the matter is that when the issue of constitutionality of section 148 (5) (a) was raised, in the district court, t’ n-’ trial magistrate should have proceeded in accordance with the procedure laid down un^->r section 9 (1) of the Basi* “iahts and Duties Enforcement Act reproduced earlier ij) this judgement. Under that procedure the magistrate had a duiry to refer that issu^ to the Hiqh Court for decision u nless:- (a; the narti^s agreed to the contrary, or . . . . /is 8 (b) the magistrate was of the opinion that the raisir.a of that question before him was merely frivolous or vexatious. Neither (a) nor (h) was applicable in this case, and so the trial magistrate had no option but to refer the question to the High Court for decision. This he did not do; he considered the question hinself and decided on it. Obviously, in terms of section 9 (i) of the Act he had no competence or jurisdiction to fo so. To that extent, therefore the uroceedings were null and void, and the learned judge should have held so. Mr* Mgwai submitted that section 9 (1) of the Basic Rights and Enforcement Act was not applicable because it was iiconsistent with section 4 of the same ,\ct quoted above. He contended that the use of the word "may" in that section meant that an .aggrieved person has the option whether to go to the High Court or to a subordinate court for redress and that his client had opte^ to ao to the district court. T We noted, by the way, that this line of r rerumen t isrdifferent from that adopted by the learned judqe who maintained that the complainant hid referred the matter to the Hi«fh*Court through an appeal. The true position however, is that Mrs. Ojare di^ rot go to the resident magistrate court to seek redress of a violation o f hm r basic riarht. She had simply applied for bail in that cotifri, and in the course of arguing .the application by the parties or their representatives, the issue of consti tutionality of section 148 (5) (a) of the Criminal ^roc «dur^ Act arose. Then the point is that once the resident magistrate court had taken cognisance that a constitutional truest;1on had thus arises, it had a .utv J~o refer such question to the Hiaa .Court for decision .../5 - 9 - b?c-iuse, as has b-^en demonstrat*^ abov?, the conditions specified under S. ? (1) for displacing that duty were non­ existent. In y e t a n o t h e r a t t e m p t to s h o w t h a t s e c t i o n 9 (1) had no application here, Mr- Mgwai contended that in any c a s e t h a t provision souaht to Heroftate f r o m A r t i c l e 30 (3) of the Constitution. The unofficial English v e r s i o n of t h a t provision says that:- "3* (3) Any person a H o gin* that any provision in this Part of this Chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person any where in the United Republic, may institute proceedings for redress in the High Court." Counsel reiterated the contention that the word "may" as used in the provision meant that the aggrieved person had the option or discretion whether to go to the High Court or to the district court for redress, and consistent therewith his client o»ted to go to the district court. Therefore, in his view, section §“ (1) of the Act .cannot now be invoked to defeat or derogate from Article 30 (3) of the Constitution, the supreme law of the land- The a n s w e r to t h i s is t h a t s u b - A r t i c l e (3) of A r t i c l e 30 of the Constitution must not 1k » r e a d in i s o l a t i o n . It has to fre r e a d t o g e t h e r with sub-Article 4 (a) o f the sa me A r t i c l e , again the u n o f f i c i a l English version of w h i c h r e a d s : - '10 10 "30 (4) Subject to the other provisions of this Constitution, the Hiqh Court shall have original jurisdiction to hear and determine any matter brought before it pursuant to this Article; and the st^te authority may enact legislation for the purpose of - (a) regulating procedure for instituting proceedings pursuant to this Article;” Pursuant to this sub-A.rtic.le, Parliament enacted the Basic Rights and Duties Enforcement Act, so that sub-Articles (3) and 4 (a) of the Constitution have now to be read together with this Act. When that is done, the import is that a persoa who complains of a violation of his basic right has the option whether to seek redress in the High Court by filing a petition in that court, or to take any oth'-r action lawfully available to him such as instituting a civil suit under the ordinary law to recover damages, say, for unlawful confinement. But where in the course of any proceedings in the subordinate court the issue of violation of a basic right of a party arises, then the trial Magistrate must refer such question to the Hiffh Court for determination. However if the parties agree that the *fuQ stion should not be referred to the High Court, then the magistrate may proceed under the ordinary law to dispose of the suit or proceedings before him. Again if, on that «fr;astion beihfl raised in the district court, thf> magistrate is of the opinion that the % raising of it is no rely frivolous or vexatious, then he can overru’.o it and proceed to conclude the proceedings under the ordinary law. His decision on whether the raisinq of the question was frivolous or vexatious is appealable or referable -' to the High Court. •.../' 11 ■ Ic follows, therefor-'-, that th^ trial magistrate had no competence or jurisdiction to hear and decide on the constitutionality of section 148 (5) (3 ) of the Criminal Procedure Act which was raised before him. That was a matter to be referred to the Hi»h Court for decision, which was not done. To the »xt»nt of such omission or error, the proceedinfs in the district court w-jre null and void. Tkat then settles the first qround of appeal. Since the otfcer grounds of appeal arise from matters which were purportedly deci^ad on *y the district court and affirmed by the Hifh Court, it follows that the-decision of the High Court was bad in law in as much as it was based on a nullity. It purported to )»e based on a matter which was not ^ f o r e the court, and to uphold a decision which was no decision at all or which did not exist in law. It is, therefore, not necessary to consider the other grounds of appeal. I» the result the appeal by the Director of Public Prosecution is allowed. The judgement of the High Court is guashe’d, and the ruling/order of the district court is declared null and void. Ordinarily we would have sent the matter back *to the district court for continuation of the hearing of the matter according to law from the sta'ge immediately following the raising of the constitutional issue before that court. However, such <*)urse of action is now overtaken by the event in the light of the nolle pros=-rjui which was entered in this c a se. D/.TSD at DAR. £S SALAAM this 1st day of July, 1*96. ./12 12 R.H. KISANGA JUSTICE OF APPEAL D.-Z. LUBUVA JUSTICE OF APPEAL B. i\o SAKATTA JUSTICE *F APPEAL